Court of Appeal in Northern Ireland Decisions

1. The appellant brings this appeal by leave of the single judge against his conviction on 11 counts of a 15 count indictment alleging sexual abuse by him of his stepdaughter ("the complainant"). The jury had convicted him on counts 1-4 inclusive and on counts 9-15 inclusive and had returned no verdict on counts 4, 5, 6 and 7. His appeal against sentence has not been proceeded with.

2. Before considering the issues raised by the appeal we set out the factual background of the case.

3. The appellant became acquainted with the complainant's mother in or about the year 1992 and they were married in September 1993. The evidence suggested they may have lived together for a period or periods of time before that date and after the marriage they lived together as husband and wife at ... Newtownards until New Year's Eve of 1993 when they separated. During that period the complainant's mother was in hospital for some 4 weeks following a road traffic accident.

4. For some 6-8 weeks after the separation the appellant resided with his sister, but thereafter he moved into a flat at ... Newtownards. During 1994 he had two other addresses in ... Newtownards. He seems to have moved into ... in or about September 1994 and later in the same year moved to ... where he remained until the month of March 1995.

5. Even though the appellant and the complainant's mother had separated at the end of 1993 there were still occasions during 1994 when they appear to have cohabited at his dwelling.

6. The complainant made a number of clear and specific allegations of sexual abuse against the appellant in the course of her evidence and referred to the following particular matters.

7. She described an occasion at ... when her mother and the appellant had gone to bed in the bedroom of the flat and were watching television. She also went into the bedroom to watch television and as she was cold she got into the bed between the two adults. Her mother fell asleep and the appellant grabbed her hand and pulled it over towards his private parts and placed it on his penis. She pulled her hand away and he repeated it again and she got up and went into the living room. There she lay down on the settee under a duvet cover and went to sleep after she had heard the television being turned off. She woke up to find the appellant sitting at the end of the settee, smoking a cigarette; he then pulled the duvet away from her, took her pants off and said "You need not make any noise, I have put sleeping tablets in your mum's coffee and she will not hear you anyway". Then he put his hands down to her vagina, took his own clothes off, which consisted of underpants, and had sex with her. She described this as an act of full intercourse.

8. Two days later she described another act of intercourse taking place on the settee, but on this occasion she had not gone into the bedroom to watch television. She was asked if anything like that had happened again and she said yes it did happen again and "it happened every chance that he got". She said that it happened at ... and also at her own home at .... It happened in her own bedroom in that house.

9. The complainant was not asked specifically whether she had consented to these acts of intercourse, but was asked whether she had said anything to the appellant about it and she replied "Well I cried and I told him to stop. I told him I did not want it and all the rest of it, but he kept saying ´shut up, you'd better not tell anybody' and things like that". She also said that intercourse took place at the ..., but was not asked to be and was not specific about those occurrences.

10. She also described an occasion when the appellant engaged in oral sex with her at the first address which he had in the ... and frequent occasions when the appellant made her masturbate him. She also, without specifying the occasions, said that the appellant used to rub her breasts and her vagina.

11. She said that she stayed at ... when her grandfather was in hospital with a stroke and her mother was staying in hospital with her grandfather. She stayed for about two weeks and she said that he would have had sex with her nearly every day and sometimes he made her have oral sex with him. She described one occasion when the appellant committed an act of buggery with her. In the course of this she was crying so much that he stopped and he then turned her round and had intercourse with her. She had thought that that time was about October 1994.

12. After that she returned to ... to reside with her mother and at Christmas 1994 they visited the appellant. A consequence of this visit was that the complainant spent a number of days with the appellant, contrary to her mother's wishes. There was a serious row between her and her mother and she went to stay in ... Children's Home on the last day of 1994.

13. Her mother was unwell at this time. She suffered from grand mal epilepsy and was also subject to depression and appears to have been in hospital during part of the time that the complainant was in the children's home. At this stage there was a serious estrangement between the complainant and her mother and the complainant made it clear that she wished to spend her time with the appellant. She went to visit him on a number of occasions at his home, sometimes with a friend called L B, and she said that on occasions on these visits he would say to her "I have to speak to you, it is very important" and then he would get her upstairs and into the bathroom and would have sex with her there. She could not remember if it took place anywhere else.

14. She was not asked by counsel whether she consented to these acts of sex which took place in the course of her voluntary visits to the appellant's home, but there was a clear implication that she did not.

15. On the basis of these allegations the jury was asked to consider the 17 counts of the indictment. Count 1 alleged rape, contrary to common law, the particulars of the offence being:

16. Counts 2-4 were in similar terms except that each specifically referred to an occasion other than that charged by the previous count or counts.

17. Counts 5-8 were also framed in similar terms and alleged unlawful carnal knowledge of a girl under the age of 14 years, contrary to Section 4 of the Criminal Law Amendment Act 1885 and the particulars in count 5 were as follows:

18. The ninth count alleged buggery and obviously related to the single incident which she had described in her evidence. Counts 10 and 11 charged the accused with inciting the complainant to commit an act of gross indecency with him. Counts 12 and 13 allege gross indecency towards the complainant and counts 14 and 15 alleged indecent assault.

19. The defence case, which was properly made clear before the commencement of the cross-examination of the complainant, was that the complainant had invented the story of sexual abuse, assisted and encouraged by her mother who bore a grudge against the appellant and that her knowledge of sexual practises arose either from her own sexual activities with persons other than the appellant or from her mother's sexual activities and prompting by her mother. The appellant gave evidence denying any form of sexual misconduct with the complainant.

20. On behalf of the prosecution, evidence was given by a cousin of the complainant, Mrs S R, describing occasions when the complainant kissed the appellant and freely cuddled him, conduct which Mrs R thought inappropriate. Miss B gave similar evidence.

21. It is clear that the Crown presented this evidence in order to show a relationship between the complainant and the appellant which displayed something more significant to the charges than was consistent with a normal relationship between a man of almost 50 years of age and the girl who had been his stepdaughter for a few months.

22. The appellant also relied on this evidence as being inconsistent with any form of sexual abuse on his part on the basis that it showed an innocent and affectionate friendship and in dealing with this matter the learned trial judge put to the jury the argument advanced by the appellant.

23. Counts 1-4 of the indictment were described by the prosecution as sample counts and no attempt was made to associate any of the specific allegations of rape made by the complainant to any of the first four counts.

24. Counts 5-8 were said to be alternative to counts 1-4 and were also described as sample counts.

25. The grounds of appeal as finally drafted were as follows:

26. Little time was taken up by argument in paragraphs 1, 2, 5, 7, 8 and 9 of the amended notice, a course which we commend, since consideration of the transcript shows that they are points of no merit.

27. However the two main points arising from paragraphs 3, 4 and 6 are of considerable interest and concern aspects of the criminal law which continue to give rise to difficulties. Mr Gallagher QC, who appeared with Mr Boyd for the appellant, argued that it was a serious irregularity in the proceedings that no attempt was made by the prosecution or the learned trial judge to relate any particular incident to any of the individual sample counts. He points out that all the counts apart from count 9 were sample counts and covered a time span from 1 January 1993 to 4 April 1995 when the complainant would have been between the ages of 11 and 13.

28. He pointed out that the alleged offences occurred in a number of different places and involved different types of behaviour, and more significantly that different alleged offences occurred at various stages of a changing relationship with the appellant from a point where he can hardly have known her to one in which they were exhibiting the type of behaviour described by Mrs R and Miss B.

29. It is now impossible to say which, if any, incident the jury focused upon when returning a verdict on any of the sample counts, and impossible to say whether they were each considering the same incident in relation to any individual count.

30. The difficulties that may arise when specimen charges are placed before a jury are discussed in paragraphs 1131 and 1132 of Archbold Criminal Pleading Evidence and Practice 1998, and have arisen in a number of cases.

31. Difficulties that may arise in the presentation of evidence in cases involving specimen counts particularly where sexual abuse is alleged may be found in the following cases: R v Farrugia (The Times 18.1.88). That case involved alleged sexual abuse of four children, three males and the other a female in which a particular form of sexual activity which the Court of Appeal referred to as "sandwich" incidents were described by the children concerned.

32. At the beginning of the case counsel for the accused sought to discover in relation to each of the four counts in the indictment precisely which incident was involved and after some discussion counsel for the prosecution identified a specific incident as being relied upon on each count.

33. None of the four specific incidents relied upon was a "sandwich" incident. The Court of Appeal commented that when the learned judge came to sum-up the case to the jury he made no reference whatever to any of the events described by any of the children which was allegedly related to any count in the indictment and Mr Justice French remarked:

34. It is clear from the transcript that the error of the learned judge in that case was to fail to direct the jury to consider the relevant parts of the children's evidence which related to incidents specifically chosen by the prosecution as relating to the specimen counts. The problem was compounded by the requirement for corroboration which existed at that time and the need to relate the corroboration to a specific offence.

35. The decision in the case therefore turned on failure to direct the jury's mind to the specific matters on which issue had been joined.

36. Neill LJ at page 37 commented as follows:

37. Later at page 42 he said:

38. It is clear from the judgment that in relation to girl A two different categories of indecent assault were alleged as having occurred on numerous occasions and that the count in the indictment did not specify which category was relied upon as the basis for that count. The court found no difficulty with this and no specific objection to that course seems to have been taken either in the course of the trial or before the Court of Appeal.

39. Eight counts were left to the jury of which the accused was convicted on four and acquitted on four. Evans LJ said at page 7 of the transcript of the judgment:

40. He then gave this direction:

41. Later in the judgment of the court Evans LJ said:

42. It was held, allowing the appeal with respect to the specimen counts, that an indictment needed to be so drawn or exemplified that a defendant would know with as much particularity as the circumstances of the case would admit what was the case he had to meet and also so that the judge, in the event of a conviction, would know precisely what it was that the jury had found proved; that it should not be too difficult in most cases, and would not have been in this case, to settle an indictment which steered a safe course between prejudicial uncertainty and overloading by, say, alleging a rape on a day between the complainant's one birthday and the next, since the difficulty in being precise in every respect was not a reason not to be as precise as possible: and that, where an indictment did not charge certain offences revealed in the statements, it was not an intervention outwith the proper role of the judge that the initiative for the additional counts came from him; but that if a defendant chose to meet general charges without objection he could not easily raise want of particularity in the Court of Appeal.

43. We would make some general observations of general application to cases involving the use of specimen counts to cover a series of repeated offences:

44. There is no doubt that in the present case, since the offences took place over what is for this kind of offence a comparatively short period and since the complainant was comparatively mature during that period, specific incidents could have been isolated and identified in the indictment. It is our view that it was an error not to proceed in that way. However, the question for this court is whether the fairness of the trial has been compromised by the course followed by the prosecution. The course adopted by the defence during the trial is also relevant and important.

45. On a review of the trial it is clear that the appellant suffered no prejudice whatever as a result of the manner in which the prosecution case was presented. Through his counsel he was able to examine in detail the specific occasions referred to by the complainant and to illustrate inconsistencies between her evidence in court and the statements made in the course of her video recorded interview with Detective Constable Darling.

46. There was sufficient particularity in the evidence which she gave about the course of events over the period covered by the indictment to allow her account to be closely examined for discrepancies as to dates and different circumstances of the parties which gave the defence the opportunity, if it could, of showing her evidence to be inaccurate eg as to the occupation of a particular residence by any of the parties, at a relevant time.

47. It does not seem to this court to be surprising that counsel for the appellant did not ask for particularisation of the indictment or for specific alleged offences to be linked to specific counts.

48. The true issue between the parties was whether the complainant was telling the truth or was inventing the charges against the appellant. That issue would have been much more difficult to determine if the evidence had been confined to a number of specific events. In a case involving persistent sexual abuse of a child it is imperative that the jury has evidence of the course of conduct during the period under review and it is clear that the appropriate course is to choose a number of sample or specimen charges to illustrate that course of conduct, and for the jury to hear the totality of the complainant's account of the alleged abuse, in the interest of both prosecution and defence.

49. It must be a matter of fact and degree in any given case whether each incident requires to be particularised or not. It is not difficult to imagine a case where it would be impossible to particularise any specific incident and it cannot be said that there is a difference in principle between a case where a child is unable to particularise any incident but is able to give evidence of a general course of conduct involving sexual abuse and a case in which a child is able to particularise some of those incidents.

50. The definitive question for this court is whether the conviction is safe. The real issue was not how often or in what circumstances sexual abuse might have taken place but whether the appellant had engaged in a course of conduct involving sexual abuse over the period covered by the indictment. It is clear that the jury believed the complainant and rejected the evidence of the appellant.

51. In our view, therefore, it was appropriate to conduct the case by reference to sample counts, and that, in the absence of a request or requirement by the defence for particularisation of the counts in the indictment, no injustice or prejudice was suffered by the appellant from the course of the trial.

52. The second main point in the appeal, which is not unconnected with the first, is that since there was a time that the complainant was behaving affectionately towards the appellant, evidence existed which required the learned trial judge to direct the jury that a defence of consent should be available to the accused in respect of any rape charges which related to that period of time.

53. Mr Gallagher submitted that since there was no specification of the sample counts all of the convictions on counts 1-4 might apply to the period when the complainant was visiting the appellant at his home.

54. There is no doubt about the existence of a duty on a trial judge in certain circumstances to put before the jury any matter of defence which arises in the evidence even though it has not, as it was not in this case, raised by the defence.

55. This is particularly so in the case of a potential defence of provocation because of the wording of Section 7(1) of the Criminal Justice Act (Northern Ireland) 1966 which provides that where there is evidence on which the jury can find that the person charged was provoked the question "shall be left to be determined by the jury". The judge is precluded from making his own assessment of the cogency of the evidence but is required to leave the matter to the jury where any such evidence exists.

56. The principle has been applied in cases involving defences other than provocation. It may apply even to a defence which is specifically disavowed by the accused. The interests of justice clearly require that an accused is convicted of the crime which the evidence shows that he has committed and no other and that he is acquitted in circumstances which provide a legitimate defence.

57. To ensure this result the judge's duty is to so instruct the jury that they are able to decide upon the proper verdict which correctly reflects their view of the facts. Thus if the Crown alleges murder and the defence relies on self defence and if on the facts it may be open to the jury to come to the conclusion that the defendant committed the actus at a time when he had lost his self control by reason of provocation then the members of the jury require to have a direction which enables them to know that a verdict of manslaughter is available.

58. It is to be borne on mind that the facts are for the jury and the jury is entitled to take any view of the facts properly open to it. It is not necessary for the trial judge to discuss with the jury every possible interpretation of the facts especially in relation to a set of circumstances upon which both prosecution and defence have advanced an interpretation.

59. It thus seems clear from that passage that the principle may apply even where the alternative is totally inconsistent with the accused's main line of defence. It does appear however, that the duty only comes into play where there is sufficiently cogent evidence to raise the alternative defence to place it before the jury and the Court must consider what is fair in all the circumstances.

60. There was evidence adduced by the Crown that during at least part of the period when the complainant was being allegedly subjected to acts of rape she was openly and physically affectionate to the appellant behaving in what was described by one witness as an unnatural way with him, and sought out his company in circumstances in which he was likely to make sexual advances to her. This was a matter which might lead a jury to draw the inference that the appellant believed or might believe that the complainant was consenting to the acts of sexual intercourse instigated by him. The learned trial judge did refer to the complainant's acts of affection telling the jury that they might think it strange that if the complainant was suffering the sexual abuse she says was happening to her then she should have shown this affection for the perpetrator. This was the interpretation which the defence were seeking to put on the acts of affection. This direction, however, did not focus the jury on the question whether the complainant by her acts and conduct might have led the complainant to believe that she was consenting to sexual intercourse.

61. However we take the view that in the circumstances of this case no special direction was needed in relation to the period when there were overt signs of affection or sexual attraction shown by the complainant to the appellant.

62. The evidence of affectionate behaviour was referred to by the learned trial judge as of some possible assistance to the appellant on the issue of credibility of the complainant which was the true issue between the parties. Mr Gallagher contends that he should also have referred to it in the context of the relationship between the parties and suggested that it was an attitude consistent with consent to sexual intercourse or at least with the existence of a belief on the part of the appellant, that did not amount to a reckless belief, that she was consenting to intercourse with him.

63. In appropriate cases judges have as a matter of regular practice directed that if the jury thought the defendant might have genuinely believed that the complainant consented even though he was mistaken in his belief they should find him not guilty of rape (see R v Satnam and Kewal 78 Cr. App. R. 149).

64. In that case the complainant and the defendant give inconsistent accounts of the incident. The complainant's version, if accepted, would have established that the defendant could not have supposed that she consented for she said she had screamed and struggled and the defendant had put his hands round her throat to silence her. The court held that on the facts of the case once the jury came to the conclusion that the complainant did not in fact consent and that she was telling the truth about the matter there was little of any room for any further conclusion that the defendant might have been labouring under any honest but mistaken belief. The judge was accordingly correct in that case in concluding that a direction on mistaken belief was not necessary.

65. The matter was the subject of consideration by this court in R v Taylor [1998] NIJB 88 where at 91 Carswell LCJ stated:-

66. The evidence of the complainant's acts of affection and the seeking out of the appellant related to a period subsequent to the initial two acts of sexual intercourse and there was no cogent evidence to suggest that when the appellant carried out those initial acts of sexual intercourse the complainant (who it must be remembered at that stage was only 11 years of age) was doing anything which could have led the appellant to believe that she was consenting to the sexual intercourse. The jury were directed to consider whether she had consented to the acts of sexual intercourse and to take into account her young age when looking at the question. If there was a duty to give the suggested direction the failure to mention the possibility that the defendant might have believed she was consenting thus has resulted in no injustice in respect of the convictions on the counts relating to those acts, as the jury could not tenably have regarded any acts of the complainant as giving rise to possible grounds for the mistaken belief on the part of the appellant that she was consenting to sexual intercourse. The same goes for the sexual intercourse which immediately followed the act of buggery.

67. As far as the fourth count is concerned it is not possible to identify what act was covered by the conviction. The issue of the appellant's possible belief in the consent of the complainant was a live one in respect of which an appropriate direction would normally fall to the jury in relation to the issue of whether the appellant might genuinely have believed that the complainant was consenting to the sexual intercourse unless there was some other circumstances in the case which made the giving of such a direction inappropriate.

68. The passage from R v Taylor set out above makes clear that in framing his direction to the jury the trial judge must consider whether in the light of all the evidence it would be fair to give such a direction. The appellant in this case presented his defence as a complete denial of any sexual misconduct. On the charges of unlawful carnal knowledge, buggery, gross indecency and indecent assault the consent of the complainant was not relevant and would have provided no defence. To have raised the question of consent in the way now suggested by the appellant in respect of the rape counts might have been perceived as weakening the appellant's defence on the other charges and there is little doubt that the defence would have been vigorously opposed to the giving of such a direction. Having regard to the way in which the defendant decided to run his defence in the particular circumstances of this case in the light of the nature and number of the charges, we do not consider that the failure to give the jury the suggested direction was unfair or has resulted in any injustice to the appellant.

69. The jury had been given the necessary legal directions to guide them towards an acquittal if they took the view that in respect of any of the acts of sexual intercourse between the parties there had been consent on the part of the complainant. In our view it is sufficient that the jury is aware of the appropriate verdict which reflects the view taken by them of the evidence. The factual conclusions are a matter for the jury and on matters of purely factual inference it is not necessary for the trial judge to refer to every possible or conceivable point of defence that may exist, but which has not been raised by the defence.

70. The particular evidence upon which the appellant relies was given an interpretation by both prosecution and defence and if the learned trial judge had sought to put a different interpretation upon it he would thereby have diminished the effect of counsel's submissions.

71. Where a possible ground of defence exists which the defence for tactical reasons decides not to refer to before the jury then defence counsel should raise the matter with the judge in the absence of the jury and request him to deal with the issue. Otherwise, the Court of Appeal may be left with the impression that the judge has been expected to detect a possible line of defence that did not occur to defence counsel or which the defence deliberately and advisedly did not raise.

72. We are satisfied that the general direction given by the learned trial judge was adequate to alert the jury to the need to be satisfied that in each case of allegation of rape it had to be proved beyond a reasonable doubt that the complainant had not consented. It was open to the jury to put whatever interpretation they thought right on the evidence of the familiarity between the complainant and the appellant. In our view it was not for the judge to put an interpretation upon it which neither party urged.

73. We are satisfied that there was no irregularity in the trial and no misdirection or failure to direct the jury on any relevant issue and that the conviction is safe and accordingly dismiss the appeal.